********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-04-DT-334
)
T. A. Forsberg, Inc. ) NAL/Acct. No: 200532360002
)
Okemos, MI ) FRN 0002 7706 59
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 17,
2005
By the District Director, Detroit Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that T.A. Forsberg, Inc. (``Forsberg'') has
apparently willfully and repeatedly violated Section 17.4(a) of
the Commission's Rules (``the Rules'').1 This noted violation
involves Forsberg's failure to register its antenna structure.
We conclude, pursuant to Section 503(b) of the Act,2 that
Forsberg is apparently liable for a forfeiture in the amount of
six thousand dollars ($6,000).
II. BACKGROUND
2. On April 23, 2004, agents from the Detroit Office
conducted an inspection of a 303 foot antenna structure located
at 2360 Jolly Oak Road, Okemos, Michigan, at the geographical
coordinates of 42º 41' 08'' north latitude and 084º 26' 14''
west longitude. The agents observed no Antenna Structure
Registration (ASR) number posted at the site. During the
inspection, the agents were approached by Mr. Dennis Forsberg,
who identified himself as President of T. A. Forsberg, Inc.
Mr. Forsberg stated that his company owns the tower and that he
believed the tower was registered with the Commission. When
the agents accompanied Mr. Forsberg to the Forsberg business
office, Mr. Forsberg was not able to produce any evidence that
the antenna structure was registered with the Commission.
3. Commission agents searched the Commission's ASR
Database and found no evidence that Forsberg's tower is
registered. The agents also identified a Notice of Violation
that had been issued to Forsberg on April 29, 1999 for failure
to register the same antenna structure.3 Commission records
also showed that, subsequent to the issuance of the NOV,
Forsberg filed an application to register the tower, but the
application was dismissed and returned to Forsberg. The agents
were not able to determine why the application had been
dismissed.
4. On June 30, 2004, the Detroit Office sent a Letter of
Inquiry (``LOI'') to Forsberg, requesting, inter alia,
information regarding the tower registration. The Detroit
Office received a response from Mr. Dennis Forsberg on July 12,
2004. Mr. Forsberg stated ``...our antenna structure has not
yet been registered with the FCC. We do not have a current FAA
study, which is required for the FCC registration. To have
this study done, we are soliciting bids to have the tower
brought into FAA and FCC compliance, and complete all the
registration paperwork required.''
5. On July 20, 2004, the Detroit Office sent a second LOI
to Forsberg seeking information about, inter alia, the status
of the tower registration. Mr. Forsberg submitted a response
to the LOI stating that ``...our antenna structure has not been
registered with the FCC. We have contacted B&L Tower ... to
bring the tower into compliance with FCC standards.''
6. On December 27, 2004, Mr. Forsberg submitted a letter
stating that ``[w]e. . . received our FAA Aeronautical Study on
December 22, 2004, Study Number 2004-AGL-7303-OE. We have
completed and submitted our FCC new antenna registration form,
and have been granted an FCC Registration Number 1246625.'' On
January 20, 2005, a Commission agent conducted a search of the
ASR database and determined that the tower was registered with
the FCC on December 27, 2004.
III. DISCUSSION
7. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term "willful"
as used in Section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed
knowingly.4 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.5
8. Section 17.4(a) of the Rules requires that ``the owner
of any proposed or existing antenna structure that requires
notice of proposed construction to the Federal Aviation
Administration must register the structure with the
Commission.''6 Section 17.4(a)(2) of the Rules requires owners
of existing antenna structures that were assigned painting or
lighting requirements before July 1, 1996, to register those
antenna structures with the Commission no later than July 1,
1998.7 Forsberg's antenna structure was assigned painting and
lighting requirements by the FAA in 1988, so registration was
required by July 1, 1998. Although Forsberg was issued an NOV
on April 29, 1999 for failure to register its antenna
structure, the structure was not registered with the Commission
until December 27, 2004. We therefore find that Forsberg
apparently willfully and repeatedly violated the Rules by
failing to register its antenna structure, as required by
Section 17.4(a) of the Rules.
9. In The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines ("Forfeiture Policy Statement"),8 and
Section 1.80 of the Rules,9 the base forfeiture amount for
failure to file required forms or information is set at three
thousand dollars ($3,000). In assessing the monetary forfeiture
amount, we must also take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Act, which include the
nature, circumstances, extent, and gravity of the violations,
and with respect to the violator, the degree of culpability,
and history of prior offenses, ability to pay, and other such
matters as justice may require.10
10. We are troubled by Forsberg's apparent disregard
for the Commission's antenna structure registration
requirements. Forsberg has been aware since the issuance of
the NOV in 1999 that its tower must be registered with the
Commission. It nevertheless did not register its tower until
December 27, 2004, more than five years after the Detroit
Office issued the NOV and only after being contacted by
Commission agents. Forsberg's apparent willful and repeated
disregard for the Commission's rules is egregious. Therefore,
based on the criteria in Section 503(b)(2)(D) of the Act, and
the upward adjustment criteria in the Forfeiture Policy
Statement, we find that an upward adjustment of the base
forfeiture amount to six thousand dollars ($6,000) is
warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Sections 4(i), 4(j), and 503(b) of the Communications Act of
1934, as amended, and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,11 Forsberg is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of six
thousand dollars ($6,000) for willful and repeated violation of
Section 17.4(a) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section
1.80 of the Commission's Rules, within thirty (30) days of the
release date of this Notice of Apparent Liability for
Forfeiture, Forsberg SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.
13. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
14. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast
Region, Detroit Office, 24897 Hathaway Street, Farmington
Hills, MI 48335, within thirty (30) days from the release date
of this Notice of Apparent Liability for Forfeiture and must
include the NAL/Acct. No. referenced in the caption.
15. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability to
pay unless the petitioner submits: (1) federal tax returns for
the most recent three-year period; (2) financial statements
prepared according to generally accepted accounting practices
("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to
the financial documentation submitted.
16. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
17. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to T.A.
Forsberg, Inc.'s address of record.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
_________________________
147 C.F.R. §§ 17.4(a).
247 U.S.C. § 503(b).
3 See Notice of Violation, April 19, 1999.
4Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
5Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than
one day.''
647 C.F.R. § 17.4(a).
747 C.F.R. § 17.4(a)(2).
812 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
947 C.F.R. § 1.80.
1047 U.S.C. § 503(b)(2)(D).
1147 U.S.C. §§ 4(i), 4(j), 503(b); 47 C.F.R. §§ 0.111, 0.311,
1.80.
1247 C.F.R. § 1.1914.